EQUALITY OFFICER'S DECISION NO: DEC-S/2016/051
PARTIES
Bridget Uhuegbu
(Represented by Duncan Crozier Shaw & Co. Solicitors )
Vs
The National College of Ireland
(Represented by Christina Ryan, B.L. instructed by Ivor Fitzpatrick Solicitors)
FILE NO: et-152266-es-15
DATE OF ISSUE: 22nd of August, 2016
1. Dispute
This dispute involves a claim by the complainant against the respondent that she was discriminated against on the ground of gender , in terms of Section 3 and, contrary to Section 5 of the Equal Status Act, 2000-2015. There is also a claim of harassment and of victimisation.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Equal Status Act, 2000-2015 to the Equality Tribunal on the 9th of January, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 26th of February, 2016 to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 27th of May, 2016.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 It is submitted that
the complainant was a student at the college since September 2011,
she was a participant in a Springboard Graduate Diploma in Management designed to encourage people back into the workforce,
the complainant was excluded from study groups and ignored by the lecturer due to her gender,
the class was half male and half female but the complainant was the only one excluded,
the complainant had an illness in 2012 which she claims a lecturer made negative comments about her appearance,
the complainant informed the college that she would no longer attend classes but would complete her work outside of class,
the complainant failed the course on three occasions and was informed that she would have to pay a fee to repeat it again,
the complainant submits that she was the only one treated this way and that this is due to her gender,
the complainant when she went to repeat her exam on 12th of May 2014 in the module Financial Management, was given an exam paper which was meant for the Msc in Management rather than the Post Graduate Diploma in Management,
the complainant received a letter from the college on 15th of July, 2014 which was dated 7th of July, 2014 stating that her request for an exam review had been refused,
the complainant when repeating Financial Management 2014/2015 was not permitted to repeat the assignments for the module and was only allowed to repeat the final exam’
the complainant’s academic affairs were not accurately supervised or marked and that this affected her results.
4. Summary of respondent’s case
4.1 It is submitted that
the complainant commenced studying at the National College of Ireland (NCI) in 2011/2012 as a student in the Postgraduate Diploma in Management which was funded as part of the HEA’s Springboard Initiative. This meant eligible students including the complainant could sit the course free of charge,
as the course was not run after 2011/2012 the college allowed all students with modules outstanding to sit them with the Postgraduate Diploma in Management which is taught at the same level and modules are shared between the two groups,
on 30th June 2013 the college wrote to all remaining students (10 in total) including the complainant, on the Postgraduate Diploma in Management to inform them that the repeat session in August 2013 would be their last opportunity to repeat remaining modules free of charge. If they had to repeat any outstanding modules in 2013/2014 they would have to pay a fee of €500 per module,
in February 2014 the college again wrote to all outstanding Postgraduate Diploma in Management students, including the complainant, to inform them that under HETAC Standards they were offered three attempts at repeating failed modules and that as this was their fourth attempt to sit the Financial Management module the NCI would not be offering them any more additional attempts,
a letter issued to the complainant on the 7th of July 2014 refusing her application for a for an examination review. Examination regulations stipulate that the grounds for review are as follows :
The examination Regulations of the college have not been properly implemented
The Regulations do not adequately cover the candidates case
Compassionate circumstances related to the candidate’s examination situation were not made known to the college by the candidate prior to or during the course of the examination concerned and of which the Board of Examiners were unaware,
based on the application for review submitted by the complainant, it was decided that there were no grounds for review in accordance with the examination regulations,
her application for review was based on the fact that the paper she sat in Financial Management was entitled Msc in Management which shares modules with the Postgraduate Diploma in Management,
the complainant had been allowed to repeat the Financial Management module three times in accordance with the HETAC (now QQI) Assessment and Standards protocols,
the complainant has made allegations of discrimination with no specific details of incidents,
the National College of Ireland (NCI) operates a number of policies in relation to the marking of assessments and to ensure that assessment should not rely on the judgement of a single marker, a second marking policy is used where scripts are re marked by external examiners to ensure fairness and consistency,
the Msc in Management programme comprises the taught modules from the Postgraduate Diploma in Management plus a Research Module and a Dissertation,
students from the Postgraduate Diploma in Management who had not completed the requirements for the award were offered the opportunity to repeat any outstanding modules by attending those modules when delivered as part of the Msc in Management programme. This was done as the Postgraduate Diploma in Management was not offered after 2011/2012 as a stand alone award,
The Postgraduate Diploma in Management and the Msc in Management are awards at Level 9 on the National Framework. Students who do not complete the MSC in Management but who have successfully completed the taught modules making up the Postgraduate Diploma in Management are offered the opportunity of an exit award and can graduate with the Postgraduate Diploma in Management. A number of students chose to repeat the modules that they failed in this manner by attending classes with the Msc in Management students. A number of these students have subsequently been awarded the Postgraduate Diploma in Management following the successful completion of the outstanding modules,
students repeating a module by exam only (which the complainant was) when repeating Financial Management in 2014/2015 were not permitted to repeat the assignments for the module but instead their final exam was weighted at 100%.
5. Preliminary Issue – Time Limits
5.1 The complainant in respect of this complaint has raised issues which she alleges took place during the period 2011 to 2015. The complaint was submitted to the Tribunal on the 9th of January, 2015 and cited the last date of discrimination as ongoing from September 2011 to July 2014. The respondent in this case has submitted that a number of these allegations were referred outside of the 6 months time limits specified by the Acts.
5.2 The applicable time limits are set out in Section 21 of the Acts. Section 21(2)(a) of the Acts provides that before seeking redress under the Acts, a complainant shall “…within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence”, notify the respondent in writing of the nature of the allegations and of the complainant’s intention, if not satisfied with the response, to seek redress under the Acts. The notification in this case was issued to the respondent on 16th of July 2014 and cites the discrimination as ongoing from September 2011 to July 2014. Section (3)(a) provides that this 2 month period may be extended for reasonable cause up to a period of four months or exceptionally, the notification requirement may be dispensed with where fair and reasonable.
5.3 Section 21(6) requires a complaint to be brought within six months “…from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.” Thus Section 21(6) requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown.
5.4 The complainant at the hearing submitted that the discrimination was ongoing and that the allegations were linked. The complainant’s representative when asked at the hearing whether he wished to make an application for an extension of time of the time limit to 12 months (to include the allegations which fall outside of the 6 months but within the 12 month time limit), did not provide any reasons or justification which could be considered as ‘reasonable cause’ for granting an extension of time to 12 months. Accordingly, in the circumstances I am not satisfied that an extension of the time limits to 12 months is warranted.
5.5 The complainant advised the hearing that the discrimination is ongoing and that all of the acts of discrimination were continuing from September 2011 when the complainant commenced the Postgraduate Diploma in Management. The complainant submits that she was discriminated against by the respondent in respect of her treatment by lecturers and in respect of the marking of her exams.
5.6 The complainant in this case has submitted that the alleged discrimination is ongoing. It is possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, firstly however, establish that a discriminatory act occurred within the limitation period (see the decision of the Labour Court in Cork County VEC v. Hurley EDA 24/2011). In this regard I have decided that my investigation should focus, in the first instance, on alleged acts of discriminatory treatment harassment and victimisation which occurred between the 10th of July, 2014 and the 9th of January, 2015 i.e. in the 6 months preceding the complaint.
5.7 If I consider these alleged incidents to amount to unlawful treatment of the complainant contrary to the Acts, I will then consider the evidence adduced on the other (earlier) incidents complained of, to determine if any of them were sufficiently connected to the incident within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incident(s) within the six months preceding the referral of the complaint not to be well founded, the earlier alleged incidents would be statute barred.
5.6 It is clear from the above, that in order to consider the earlier alleged incidents of discrimination, I must firstly decide whether the most recent alleged incident of discrimination is proven. In addition, I must be satisfied that the complainant has established a link between the incidents and that they can be considered as separate manifestations of the same disposition to discriminate.
5.7 The complainant in this case has submitted that she was discriminated against by the respondent on grounds of her gender and that she was harassed and victimised by the respondent.
6. Findings and Conclusions of the Equality Officer
6.1 The issues for decision by me are, whether or not, the respondent discriminated against the complainant, on grounds of gender , in terms of Section 3 and, contrary to Section 5 of the Equal Status Act, 2000-2015. There is also a claim of harassment and of victimisation. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
6.2 Discrimination
Section 3 (1) and (2) of the Equal Status Acts, 2000-2015 set out the definition of discrimination as follows;
“3. (1) For the purposes of this Act, discrimination shall be taken to occur where—
(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,
(b) (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and
(ii) similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,
or
(c) (i) a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,
(ii) The person is obliged by the provider of a service (within the meaning of section 4 (6)) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,
(iii) substantially more people outside the category than within it are able to comply with the condition, and
(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.
(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(a) that one is male and the other is female (the “gender ground”),”
6.3 Harassment
Section 11(5) of the Equal Status Acts, 2000-2015 sets out the definition of harassment as follows;
“Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.”
6.4 Victimisation
Section 3(2)(j) of the Equal Status Acts 2000-2015 sets out the definition of victimisation as follows:
that one—
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the “victimisation ground”).
6.5 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.
6.6 Allegations of Discriminatory treatment, Harassment and Victimisation
6.6.1 The complainant advised the hearing that she had received a letter from the respondent, dated 7th of July 2014 informing her that her application for an exam review had been refused, she stated that she did not receive this letter until the 15th of July 2014. I am satisfied that the complainant received the letter on the 15th of July 2014 as stated by her, and that this incident falls within the 6 months preceding the complaint which was submitted on the 9th of January, 2015.
6.6.2 The complainant told the hearing that the letter of the 7th of July 2014 stated that the respondent had refused her application for a review of her exam result in the ‘Finanacial Management’ module which she had sat for the fourth time in May 2014. The complainant went on to state that on the day she had sat this exam, the exam paper title referred only to the Msc in Management and did not contain any reference to the Postgraduate Diploma in Management, the course in which the complainant had been a student.
6.6.3 The respondent in response to this advised the hearing that the complainant had applied for a review of her exam result in Financial Management, which the respondent had refused. The respondent stated that examination regulations stipulate that the grounds for review are as follows :
The examination Regulations of the college have not been properly implemented,
The Regulations do not adequately cover the candidates case,
Compassionate circumstances related to the candidate’s examination situation were not made known to the college by the candidate prior to or during the course of the examination concerned and of which the Board of Examiners were unaware.
6.6.4 The respondent advised the hearing that, based on the application for review submitted to them by the complainant, it was decided that there were no grounds for review in accordance with the examination regulations. The respondent advised the hearing that the complainant’s application for review was based on the fact that the paper she sat was entitled Msc in Management which shares modules with the Postgraduate Diploma in Management.
6.6.5 The respondent advised the hearing that the complainant in May 2014 was sitting the Financial Management module for the fourth time and at this point the college was no longer offering the Postgraduate Diploma in Management. The respondent went on to state that students from the Postgraduate Diploma in Management who had not completed the requirements for the award were offered the opportunity to repeat any outstanding modules by attending those modules when delivered as part of the Msc in Management programme. This was done as the Postgraduate Diploma in Management was not offered after 2011/2012 as a stand alone award.
6.6.6 The respondent advised the hearing that the Postgraduate Diploma in Management and the Msc in Management are both awards at Level 9 on the National Framework and that students who do not complete the MSC in Management but who have successfully completed the taught modules making up the Postgraduate Diploma in Management are offered the opportunity of an exit award and can graduate with the Postgraduate Diploma in Management. The respondent told the hearing that a number of students chose to repeat the modules that they failed in this manner by attending classes with the Msc in Management students. The respondent stated that a number of these students have subsequently been awarded the Postgraduate Diploma in Management following the successful completion of the outstanding modules.
6.6.7 The complainant in advancing this claim has alleged that she was discriminated against and harassed by the respondent on grounds of gender, in relation to this matter. However, I am satisfied based on the totality of the evidence adduced in relation to this matter, that the complainant was not discriminated against or harassed on the ground of gender, by the respondent in relation to this matter.
6.6.8 The complainant has also submitted an allegation in respect of her re sitting of the Financial Management module in 2014/2015. The respondent at the hearing raised an issue in respect of time limits in relation to this matter due to the fact that this allegation post-dates the lodging of the claim, in that it relates to a time period after the submission of the complaint. While I note the respondent’s concerns in this regard, I am satisfied in the present case that the respondent was on notice of this matter having received a copy of the complainant’s submission in November 2015, which includes details of this allegation. This matter was also raised in a letter from the complainant to the respondent in July 2015. Thus for the sake of completeness and for the avoidance of doubt I will examine this allegation in the context of my decision.
6.6.9 The complainant has submitted that she, the complainant, when repeating the Financial Management module in 2014/2015 was not permitted to repeat the assignments for the module on this occasion and was only allowed to repeat the final exam. The complainant submits that prior to this, the exam was worth 60% and the assignments were worth 40%. The complainant advised the hearing that she was not permitted to do the 40% of assignments in the year 2014/2015 and that her final exam was instead worth 100%. The respondent advised the hearing that students who were repeating the Financial Management module in 2014/2015, on an exam only basis, were allocated 100% of the marks for the module, for the final exam as they were not taking part in the continuous assessments. The respondent advised the hearing that this applied to all students repeating the module by exam only in the year 2014/2015 including the complainant and that this is irrespective of gender and irrespective of notification of a complaint.
6.6.10 The complainant in advancing this claim has alleged that she was discriminated against and harassed by the respondent on grounds of gender, in relation to this matter. However, I am satisfied based on the totality of the evidence adduced in relation to this matter, that the complainant was not discriminated against or harassed on the ground of gender, by the respondent in relation to this matter.
6.7 Victimisation
6.7.1 I have indicated above that I will confine my decision, in the first instance, to the allegations which relate to the 6 months period preceding the complaint however, in order to examine the allegation of victimisation it is necessary to refer to incidents prior to the 6 months period for their probative value in respect of the complaint of victimisation.
6.7.2 The complainant submitted that she made a complaint to the respondent about a named lecturer in 2011. The complainant advised the hearing that she had in November 2011 made a complaint against a lecturer whom she alleges was excluding her from study groups and ignoring her in classroom situations. The complainant at the hearing outlined incidents where she felt she had been subjected to less favourable treatment and harassment on grounds of her gender by the lecturer in question. She told the hearing that this was due to her gender. When questioned about the gender make up of the class the complainant advised the hearing that it was about half male and half female but that she was the only person to be excluded. She advised the hearing that she was excluded due to her gender but that others of the same gender were not excluded.
6.7.3 The complainant told the hearing that it was possible that one person could be excluded due to their gender while others of the same gender were not excluded. She told the hearing that classmates of both genders were included in the study groups from which she was excluded. The complainant, in her submissions has cited numerous incidents where the lecturer allegedly spoke to her or made comments which she found offensive but which she did not in any way link to her gender or to less favourable treatment on grounds of gender. The complainant when questioned at the hearing reiterated her view that it was possible to discriminate against one person on the ground of gender while treating others of the same gender differently. The complainant told the hearing that persons of both genders were included in the groups while she was excluded due to her gender.
6.7.4 The respondent advised the hearing that the complainant had submitted a complaint about a named lecturer to the college in November 2011. The respondent advised the hearing that the complaint was investigated and that, following meetings with the Vice President of the College and the College Registrar, the complainant was asked to provide names of witnesses to any incidents she had alleged had taken place. The respondent stated that the complainant had never provided such names.
6.7.5 The respondent submitted minutes of a meeting which had taken place in November 2011, between the complainant, the College Vice President, the Program Director and the Program Co-Ordinator in order to clarify the issues she was raising about a particular lecturer. These minutes indicate that matters relating to exclusion from study groups had been resolved once brought to the attention of the Program Co-ordinator. The minutes also indicate that the complainant raised concerns about the marking of her scripts due to the issues with the lecturer. The minutes indicate that the respondent advised the complainant that all scripts were second marked internally and then sent to an External Examiner for review and that hers would be included in all samples to externs to ensure fair marking. The respondent advised the hearing that the complainant’s main areas of concern were addressed at that meeting but that comments which she alleges were made by the lecturer could not be substantiated.
6.7.6 The complainant has submitted that her treatment in respect of the allegations raised in her complaint amounts to victimisation on foot of complaints made by her against the respondent and against lecturers. The allegations raised in the complaint to the Tribunal relate to incidents dating from July 2014 almost three years after her complaint against a lecturer made in November 2011. The complainant in her submissions and in her evidence at the hearing also made allegations against other lecturers. The complainant’s allegations in respect of the 7th of July 2014 letter refusing her application for an exam review were replied to by the respondent at the hearing as outlined above. I am satisfied from the totality of the evidence adduced in relation to this matter that the refusal of the respondent to review the complainant’s exam result for Financial Management for the period 2013/2014 does not amount to adverse treatment and was unrelated to the complainant’s complaint against a lecturer in November 2011 or to later allegations raised by the complainant in respect of other lecturers. I am also satisfied from the totality of the evidence adduced in relation to this matter that the treatment of the complainant in this regard does not amount to adverse treatment on foot of an action defined in Section 3(2)(j) of the Equal Status Acts 2000-2015. Accordingly, I am satisfied, that the complainant was not victimised by the respondent in relation to these matters.
6.7.7 As regards the allegation raised by the complainant in respect of her having to sit a 100% final exam for the Financial Management module in 2014/2015, instead of 40% marks for assessment and 60% for the final exam, the respondent advised the hearing that the decision to change to 100% for the final exam was made by the exams office and applied to all who repeated this module ‘by exam only’ at this time. I am satisfied from the totality of the evidence adduced in relation to this matter that the treatment of the complainant in this regard does not amount to adverse treatment and was unrelated to the complainant’s complaint against a lecturer in November 2011 or to later allegations raised by the complainant in respect of other lecturers. I am also satisfied from the totality of the evidence adduced in relation to this matter that the treatment of the complainant in this regard does not amount to adverse treatment on foot of an action defined in Section 3(2)(j) of the Equal Status Acts 2000-2015. Accordingly, I am satisfied, that the complainant was not victimised by the respondent in relation to these matters.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision. I find –
that the complainant was not discriminated against by the respondent on the ground of gender in terms of Section 3 and, contrary to Section 5 of the Equal Status Acts, 2000-2015.
that the complainant was not harassed by the respondent on the ground of gender in terms of Section 11 (5) of the Equal Status Acts, 2000-2015.
that the complainant was not victimised by the respondent in terms of Section 3(2) (j) of the Equal Status Acts 2000-2015.
____________________
Orla Jones
Adjudicator/Equality Officer
22nd of August, 2016